Self-Help Ventures Fund v. Powell, et al

Filing 16

ORDER denying 12 Motion for Entry of Default as to Eddie N. Powell and wife, Teresa W. Powell - The motion is DENIED without prejudice to renew within 30 days. Any new motion for entry of default must be supported by proof of service as mandated by the Federal Rules of Civil Procedure. Signed by Julie Richards Johnston, Clerk of Court on 12/16/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-228-FL
SELF-HELP VENTURES FUND,
Plaintiff,
v.
EDDIE N. POWELL and wife, TERESA W.
POWELL; and UNITED STATES
DEPARTMENT OF TREASURY,
INTERNAL REVENUE SERVICE,
Defendants.

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ORDER

This matter is before the undersigned on the Motion for Entry of Default as to Defendants
Eddie N. Powell and wife, Teresa W. Powell [DE-12]. For the reasons stated below, the motion
is DENIED without prejudice.
Rule 55 ofthe Federal Rules of Civil Procedure provides: "When a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure
is shown by affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P.
55(a). Plaintiffs counsel has submitted a declaration that she has received no form ofresponsive
pleading from Defendants Eddie N. Powell and Teresa W. Powell. These defendants, however,
have no obligation to file and serve a responsive pleading until properly served. See Maryland

State Firemen's Ass 'n v. Chaves, 166 F.R.D. 353, 354 (D. Md. 1996) ("It is axiomatic that
service of process must be effective under the Federal Rules of Civil Procedure before a default
or a default judgment may be entered against a defendant."), Henderson v. Los Angeles Cnty.,
No. 5:13-CV-635-FL, 2013 WL 6255610, at *1 (E.D.N.C. Dec. 4, 2013) (explaining that "a
defendant's duty to respond to a complaint only arises upon proper service of process" and

therefore a "plaintiff must show, by affidavit or otherwise, that proper service of process has
been effected before default may be entered"); see also Fed. R. Civ. P. 12(a)(l)(A).
Plaintiff's motion references an affidavit of service filed in state court and omitted from
the state court pleadings filed with the notice of removal.

Plaintiff has not, however, filed

another copy of that affidavit of service in connection with the instant motion. With no adequate
proof of service, the clerk cannot find that entry of default is appropriate.
Accordingly, the Motion for Entry of Default as to Defendants Eddie N. Powell and wife,
Teresa W. Powell [DE-12] is DENIED without prejudice to renew within 30 days. Any new
motion for entry of default must be supported by proof service as mandated by the Federal Rules
of Civil Procedure.
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SO ORDERED. This the~ day of December, 2015.

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ieRiCi1afdSJOhI
Clerk of Court

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